CONSULTING AND COMPENSATION AGREEMENT
THIS CONSULTING AND COMPENSATION AGREEMENT (the "Agreement")
is entered into this 1st day of September, 2000 by and between
Tinamilu Holdings Limited, a corporation organized under the laws of
_______________________, (the "Consultant") and At Home Holdings,
Inc., a Nevada corporation (the "Corporation").
W I T N E S S E T H:
WHEREAS, Consultant is engaged in the business of providing
oil and gas industry management and consulting services; and
WHEREAS, Corporation desires to engage Consultant on a
non-exclusive basis for the Term (as hereinafter defined) in order
to assist the Corporation in furthering certain business objectives
of the Corporation; and
WHEREAS, Consultant has agreed to provide certain services
to the Corporation and, Corporation has agreed to compensate
Consultant pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Recitals. The recitals hereinabove set forth are
acknowledged by the parties to be true and correct and are
incorporated herein by reference.
2. Description of Services. Consultant, subject to the
discretion of Corporation, will provide certain consulting services
(the "Services") to Corporation. The Services shall include, but
may not be limited to the identification and introduction to the
Corporation of certain viable oil and gas projects (the "Projects")
for acquisition by Corporation.
3. Compensation.
(a) Consulting Fees. As compensation for the Services,
the Corporation has agreed to pay certain fees to Consultant (the
"Consulting Fees") in the amount of Xxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Dollars (US$100,000.00). Consulting Fees payable to
Consultant for the provision of the Services shall be paid by the
Corporation to Consultant in two (2) equal installments in the
amount of Fifty Thousand United States Dollars (US$50,000.00) each,
the first of which installments (the "First Installment") shall be
paid on December 31, 2001 (the "First Installment Payment Date") and
the second of which installments (the "Second Installment") shall be
paid on September 30, 2002 (the "Second Installment Payment Date")
(b) Payment of Consulting Fees. Consultant shall
receive payment of the First Installment on the First Installment
Payment Date and the Second Installment on the Second Installment
Payment Date.
(c) Other. In the event Consultant provides services to
the Corporation in addition to the Services provided for hereunder,
Consultant may be compensated by Corporation for such additional
services as mutually agreed in writing by Consultant and Corporation.
4. Other Expenses of Consultant. The Consulting Fees
shall be the only compensation to Consultant. Consultant
understands that Consultant shall be obligated to pay any and all of
its own costs and expenses associated with providing the Services to
the corporation, including but not limited to travel, entertainment
and other general office expenses.
5. Term. The term of this Agreement ("Term"), subject
to the provision for termination set forth hereinafter, shall
commence on the date of execution hereof by the parties hereto and
continue to September 1, 2002.
6. Termination. Consultant may not terminate this
Agreement. Corporation may terminate this Agreement upon thirty
(30) days prior written notice. Notwithstanding any such
termination by Corporation, Corporation shall not be relieved of
any obligation accruing hereunder prior to the date of such
termination, including but not limited to the obligation upon
Corporation to pay the Consulting Fees to Consultant .
7. Exclusivity.
(a) The Corporation and Consultant hereby acknowledge
and understand that during the Term, Corporation may engage any
other party whatsoever to provide services to the Corporation that
are substantially the same as the Services being provided by
Consultant to the Corporation pursuant hereto.
(b) The Corporation expressly understands and
acknowledges that Consultant now renders, and in all probability
will continue to render, services which are substantially similar to
the Services to other parties, some of which parties may conduct
business and have activities similar to those of the Corporation.
The Corporation specifically authorizes the Consultant to continue
with such activities, and the Consultant shall not be prevented or
otherwise prohibited, during the Term or otherwise, from rendering
services to any other party whatsoever which are the same or
substantially similar to the Services to be provided by Consultant
to Corporation pursuant to this Agreement.
8. Relationship of Parties.
(a) Nothing contained in this Agreement shall authorize,
empower or constitute Consultant as the agent of Corporation in any
manner; authorize or empower Consultant to assume or create any
obligation or responsibility whatsoever, expressed or implied, on
behalf of or in the name of the Corporation; or authorize or empower
Consultant to bind the Corporation in any manner or make any
representation, warranty, covenant, agreement or commitment on
behalf of the Corporation.
(b) The obligations upon Consultant as set forth in this
Agreement consists solely of the furnishing of information and
advice to the Corporation. In no event shall Consultant be required
to act as the agent of the Corporation or to otherwise represent or
make decisions for the Corporation. All decisions with respect to
any action of the Corporation or its subsidiaries or affiliates,
whether or not made pursuant to or in reliance on information or
advice furnished by Consultant given pursuant hereto, shall be the
exclusive domain of the Corporation or such subsidiary or affiliate,
and Consultant shall under no circumstances be liable for any
expense incurred by Corporation or any loss suffered by the
Corporation as a consequence of any such decision of Corporation or
its subsidiaries or affiliates.
(c) It is expressly acknowledged that Consultant will
utilize its best efforts in performing the Services contemplated by
this Agreement, however, Consultant makes no representation or
warranty as to ultimate success of any action undertaken by the
Corporation as a result of the Services provided by Consultant
hereunder.
(d) Consultant is acting as an independent contractor,
and nothing contained in this Agreement or in the relationship
between Consultant and Corporation shall be deemed to constitute a
partnership, joint venture or any other relationship, except for the
relationship as specifically set forth in this Agreement.
9. Liability of Consultant. The Corporation
acknowledges that Consultant shall incur no liability to the
Corporation or any other party on account of this Agreement, on
account of any acts or omissions arising out of or related to the
actions of Consultant under this Agreement or on account of the
performance or failure to perform any Services to be provided by
Consultant under this Agreement except that Consultant shall remain
liable for the intentional or willful misconduct of Consultant.
Likewise, the Consultant shall have no liability whatsoever with
respect to the decisions made or the actions taken by the
Corporation in reliance upon the advice or recommendations of the
Consultant or as a result of any of the Services provided by the
Consultant pursuant hereto. This paragraph shall survive the
termination of this Agreement.
10. Indemnification.
(a) Indemnification by Corporation. Corporation hereby
agrees to indemnify, defend and hold harmless Consultant, its
partners, employees, agents, representatives and controlling persons
(and the officers, directors, employees, agents, representatives and
controlling persons of each of them) from and against any and all
demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including, without
limitation, interest, penalties, reasonable legal fees and expenses,
expense incurred in giving testimony or furnishing documents in
response to subpoena or otherwise and including, without limitation,
the cost of investigation, preparing or defending any such action,
suit proceeding or claim, whether or not in connection with any
action, suit, proceeding or claim in which Consultant is a party,
asserted against, imposed upon or incurred by Consultant resulting
from or by reason of the provision by Consultant of the Services
pursuant to this Agreement.
(b) Indemnification by Consultant. Consultant hereby
agrees to indemnify, defend and hold harmless Corporation, its
shareholders, employees, agents, representatives and controlling
persons (and the officers, directors, employees, agents,
representatives and controlling persons of each of them) from and
against any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties, reasonable legal
fees and expenses, expense incurred in giving testimony or
furnishing documents in response to subpoena or otherwise and
including, without limitation, the cost of investigation, preparing
or defending any such action, suit proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in
which Consultant is a party, asserted against, imposed upon or
incurred by Corporation resulting from or by reason of any breach by
Consultant of the terms hereof.
(c) Conditions of Indemnification. The obligations and
liabilities of the parties hereunder regarding claims resulting from
the assertion of liability by third parties shall be subject to the
following terms and conditions:
(1) An indemnified party (the "Indemnified
Party") hereby agrees to promptly notify the indemnifying
party (the "Indemnifying Party") in writing of any claims
asserted against, imposed upon or incurred by the
Indemnified Party and the Indemnifying Party hereby agrees
to undertake the defense thereof by representatives chosen
by the Indemnifying Party. The Indemnifying Party shall
have the right to control and handle the conduct of any
litigation. The Indemnified Party hereby agrees to
cooperate with the Indemnifying Party in the defense of any
such claim or proceeding. The Indemnifying Party hereby
agrees to keep the Indemnified Party informed as to the
progress of any such claim or proceeding; and
(2) In the event that the Indemnifying Party,
within fifteen (15) days after notification by the
Indemnified Party of any claim, fails to defend, control or
handle such matter, the Indemnified Party shall have the
right, upon written notification to the Indemnifying Party,
to defend, compromise or settle the same on behalf of an for
the account and at the risk of the Indemnifying Party. In
such event, the Indemnifying Party hereby agrees to advance
and pay all costs and reasonable attorneys fees of such
indemnification and give full cooperation to the Indemnified
Party, subject, however, to the right of the Indemnifying
Party to assume such defense at any time prior to final
settlement, compromise or determination thereof.
11. Confidential Information.
(a) Definition of Confidential Information. For the
purposes hereof, the term "Confidential Information" shall mean any
and all communications, financial statements, documents, customer
lists, business plans, supplier lists, pricing information, vendor
information, biographical information, market studies and analysis,
product information, transportation and distribution information and
all other information, documents, items or communication disclosed
by Corporation to Consultant, including but not limited to the Due
Diligence Information; provided, however, that the term Confidential
Information shall not include any of the foregoing which:
(1) is or becomes generally available to the
public other than as a result of a breach of this Agreement;
(2) was within possession of Consultant prior to
it being furnished to Consultant by Corporation;
(3) becomes available to Consultant on a
non-confidential basis from a source other than Corporation,
provided that to the best knowledge of Consultant, such
party is not bound by a confidentiality agreement with
respect to such information; or
(4) was independently developed by Consultant
without reference to the Confidential Information provided
hereunder.
(b) Review of Confidential Information. Corporation
shall provide the Confidential Information to Consultant at such
time and in such manner as may be mutually determined by Consultant
and Consultant. Confidential Information may only be provided by
Consultant to employees and authorized representatives of Consultant
in conformity with the terms hereof.
(c) Disclosure of Confidential Information. Consultant
hereby agrees, on behalf of itself, its partners, its officers, its
directors, its employees, its representatives and any subsidiaries
or any affiliated entities controlled by Recipient (collectively,
the "Consultant Affiliates") as follows:
(1) Recipient shall not at any time or in any
manner or fashion, either directly or indirectly, without
the prior agreement of Corporation;
(A) use, derive a benefit from or otherwise
claim any proprietary interest in the Confidential Information;
(B) divulge, disclose or communicate to any
third party or entity whomsoever any of the Confidential
Information; or
(C) make any statement, public announcement or
any release to trade publications or to the press or make
any statement to any competitor, customer or any other third
party, regarding the Confidential Information, except as may
be required by a court of competent jurisdiction in order to
comply with the requirements of any law, governmental order
or regulation.
(2) Consultant shall take all reasonable action,
which shall be necessary or appropriate, to prevent the
unauthorized use and disclosure of the Confidential
Information, and to protect the interests of Corporation in
and to the Confidential Information.
(3) Consultant shall require the Consultant
Affiliates to abide by the terms of this Agreement and
retain all Confidential Information in strict confidence.
Furthermore, at the request of Corporation any Consultant
Affiliate having access to the Confidential Information
shall be required to execute an agreement whereby such
Consultant Affiliate agrees to be bound by the terms and
conditions of this Agreement relating to the Confidential
Information.
(4) No Confidential Information shall be
disclosed by Consultant to any consultant, professional
representative, attorney, accountant, banker, agent or other
party related to Recipient (hereinafter "Related Parties")
without such Related Party executing an agreement whereby
such Related Party agrees to be bound by the terms and
conditions of this Agreement relating to the Confidential
Information.
(d) Survival. This provisions of paragraph shall
survive the termination of this Agreement.
12. Public Disclosure. Any reference to the Consultant
or any advice, information or other matter pertaining to the
Services shall not be publicly disclosed or made available to any
third party without the prior written consent of the Corporation,
unless such disclosure is required by law.
13. Miscellaneous.
(a) Arbitration. All disputes, controversies or
differences that may arise between the parties out of, in relation
to or in connection with this Agreement shall be resolved by
arbitration pursuant to the commercial arbitration rules then in
effect of the American Arbitration Association, by which arbitration
each party hereto shall be bound. Each party shall promptly select
an arbiter from the approved list of arbiters provided by the
American Arbitration Association, and these two (2) arbiters shall
then select a third arbiter. Any arbitration hearing shall be held
in Palm Beach County. Any award rendered by the arbiters shall be
final and binding on the parties and shall be specifically
enforceable. The prevailing party in any such arbitration shall be
entitled to the costs associated with such arbitration, including
attorneys' fees and costs. In the event such specific enforcement
is so required, each party to this Agreement hereby expressly and
irrevocably submits to the jurisdiction of the United States
District Court, Southern District of Florida or any other competent
court sitting in the State of Florida, County of Palm Beach, and
each party waives the right to nay other jurisdiction or venue to
which any of them may be entitled by reason of its present or future
domicile. Furthermore, each of the parties hereto consents to the
service of process by registered of certified mail to the address
set forth in the Notice section of this Agreement.
(b) Assignment. This Agreement shall be considered
unique and personal as to the parties hereto. Therefore, neither
Consultant nor Corporation may assign all or any part of the
obligations undertaken pursuant to this Agreement without first
having obtained the prior written consent of the other party hereto.
Notwithstanding the foregoing, the Corporation and Consultant shall
have the right, without prior approval, to assign this Agreement to
any parent or affiliate.
(c) Authorization. The parties signing this Agreement
represent and warrant that they have the full authority and legal
capacity to do so.
(d) Benefit. This Agreement shall enure to the benefit
to the parties thereto and there respective successors and assigns.
(e) Captions. The captions used herein are provided
only as a matter of convenience and for reference and in no way
define, limit or describe the scope of this Agreement nor the intent
of any provision hereof.
(f) Counterparts. This Agreement may be executed in one
(1) or more counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same agreement.
(g) Entire Agreement. This Agreement contains the
entire agreement between the parties hereto with respect to the
subject matter hereof, and any prior or contemporaneous oral or
written agreements, understandings, arrangements, negotiations or
communications among the parties not specifically incorporated
herein shall be of no force or effect.
(h) Facsimile Execution. Facsimile signatures on
counterparts of this Agreement are hereby authorized and shall be
acknowledged as if such facsimile signatures were an original
execution.
(i) Governing Law. This agreement shall be construed
and interpreted in accordance with and shall be governed by the laws
of the State of Florida, without regard to principals of conflict of
law and irrespective of the fact that one or more parties hereto is
now or may hereafter be a resident of a different state,
jurisdiction or country.
(j) Headings. The headings contained in this Agreement
have been inserted for convenience and reference purposes only and
shall not affect the meaning or interpretation hereof in any manner
whatsoever.
(k) Modification. This Agreement shall not be modified,
varied or amended except by the written agreement signed by each of
the parties hereto.
(l) No Implied Waivers. The failure of either party to
require the performance by the other party to any provision hereof
shall in no way affect the full right to require such performance at
any time thereafter. The waiver by either party of a breach of any
provision hereof shall not constitute a waiver of any subsequent
breach of the same or any other provision, nor shall it constitute a
waiver of the provision itself.
(m) Notices. All notices to be given under this
Agreement shall be in writing, and may be given, served or made by
depositing the same in the U.S. mail addressed to the party to be
notified at the address herein set forth, post-paid and registered
or certified with return receipt requested, by recognized overnight
delivery service, by delivering the same in person to such party or
by sending such notice by facsimile transmission:
If to Consultant: _________________________
_________________________
_________________________
If to Corporation: _________________________
_________________________
_________________________
(n) Rights of Third Parties. Except as otherwise
specifically provided for herein, nothing expressed or implied in
this Agreement is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto,
any rights or remedies under or by reason of this Agreement.
(o) Severability. In the event any one or more of the
provisions of this Agreement or the application thereof shall be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions hereof and
any other application thereof shall in no way be affected or impaired.
(Signatures appear next page)
IN WITNESS WHEREOF, the Corporation and Consultant have
executed this Agreement as of the date set forth hereinabove.
CONSULTANT:
Tinamilu Holdings Limited
By: ________________________, President
CORPORATION
At Home Holdings, Inc.
By: Xxx XxXxxxxxx, President
